Wednesday, February 8, 2012

9th Circuit Rules Prop 8 Unconstitutional

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially re-classify their relationships and families as inferior to those of opposite-sex couples." -Judge Reinhardt, Perry v. Brown

An important take-away of this decision is that it is a narrow one. The Court asked, to paraphrase, "Was it constitutional for California to extend the status of marriage to same-sex couples and then later take that status away?" That is an interesting way for the Court to have framed the issue. Framing is everything in a court case and, while it is certainly true that the State took away same-sex couples' right to marry, the Court could have just as well framed the issue as "Is it constitutionally permissible for voters to deny same-sex couples the right to marry?"

The US Supreme Court, shall this case eventually make it there, should then in theory limit its ruling to the narrowly-framed issue as articulated by the 9th Circuit. However, I wouldn't be surprised if the Supreme Court also decided to frame the issue differently. At least several different legitimate ways usually exist to frame a constitutional issue.

So, in answer the narrow issue, the 9th Circuit recounted the facts of Prop 8. In short, before Prop 8 passed, 18,000 same-sex couples were legally married in the state of California and given all of the state-level rights, benefits, and responsibilities of marriage. After Prop 8 passed, same-sex couples alone then lost the right to designation of "marriage," while still maintaining the state-level rights, benefits, responsibilities of marriage.

Yes, I can already hear opponents of same-sex marriage questioning how it could possibly hurt same-sex couples to take away the word "marriage" from same-sex couples if such couples still received the same rights under a different designation. I would suggest that such people become familiar with the word "stigma." Or, as the 9th Circuit explained:

"...[W]e emphasize the extraordinary significance of the official designation of 'marriage.' The official designation is important because 'marriage' is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a lifelong committed relationship, a marriage by the name 'registered domestic partnership' does not."

I have said before that I have complicated, conflicting thoughts about assimilating same-sex couples into the Cool Kids' Marriage Club and how that might, in turn, stigmatize other forms of relationships between adults and create new hierarchies. On a practical level, I also think that allowing same-sex couples to marry will decrease the stigma associated with same-sex relationships and homosexuality. And so to answer my own criticism, I don't see marriage equality for same-sex couples as the ultimate end goal of the LGBT/feminist/progressive movement that I want to be a part of, I see it as a step in the right direction.

Continuing on with the opinion, the 9th Circuit then asked whether California had a legitimate reason for taking away the designation "marriage" from same-sex couples.

Perhaps explaining why the Court framed the issue as it did, the 9th Circuit articulated that it is much different, and suggestive of a more sinister purpose, to take away a right from a disliked minority group than to merely leave alone a status quo of "man woman marriage." In this way, by extending same-sex couples the right to marry and then taking away that right, this case is analogous to Romer v. Evans, where local ordinances first banned discrimination on the basis of sexual orientation and then, later, voters repealed all laws in the state that protected people on the basis of sexual orientation.

As a notable fact, Justice Kennedy is widely believed to be the swing vote in any Supreme Court same-sex marriage opinion. He wrote the majority pro-equality opinion in Romer. It is an interesting approach for the 9th Circuit to have made the Prop 8/Romer comparison so explicitly here. I would be surprised if that were a coincidence and I hope that bodes well for Team Equality.

The 9th Circuit then addressed the reasons put forth for enacting Prop 8:

1) Prop 8 "advances California's interest in responsible procreation and childrearing" (I have addressed this argument here and explained why it's not a legit reason for discrimination): The Court held that Prop 8 was not rationally-related to these interests because Prop 8 did not restrict the right of same-sex couples to adopt or raise children. A law that was actually aimed to promote man-woman child-rearing would have sought to restrict same-sex parenting.

2) There is no point to same-sex marriage because same-sex couples can't accidentally procreate: The Court claimed that it is no justification to take something away to say that it should have never been given in the first place. Prop 8 proponents would have had to argue, and demonstrate, that same-sex marriage would make it more likely for man-woman couples to procreate "accidentally or irresponsibly" upon the legalization of same-sex marriage. They failed to do so.

3. Prop 8 justifies the state's interest in proceeding cautiously in changing the definition of marriage: The Court aptly noted that, in short, an absolute ban of unlimited duration on same-sex marriage in the state Constitution was not merely proceeding with caution, it is a fundamental barrier. It is therefore not rational to think that Prop 8 was enacted for purposes of acting cautiously.

To end, the 9th Circuit concluded that absent a rational relationship to any purported government interest in passing Prop 8, the voters of California enacted Prop 8 out of animosity or, more likely, "mere disapproval" of gays and lesbians- which is not a legitimate government interest. In making this conclusion, the Court observed that, as in Romer, the pro-Prop 8 ads often relied on stereotypes about the inferiority of same-sex relationships, stated that homosexuality and gays/lesbians are inferior, and that children need to be protected from learning about homosexuality and gay people.

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